Sources under siege: The need to protect the flow of news in the digital age

This is adapted from a talk I gave to the annual conference of the international Organization of News Ombudsmen, May 20, 2013, in Los Angeles.

Last year I was asked to prepare a presentation for an investigative reporting symposium that’s held every year at the Graduate School of Journalism at the University of California, Berkeley.

My assignment was to offer an overview of the state of investigative reporting in the USA.

This was a time when the country was, in principle, on the declining end of the anti-terrorism panic that gripped the nation after the attacks of Sept. 11, 2001. National leadership had changed too, and the country was now led by an administration that was winding down the two wars the government of George W. Bush had begun, and had essentially repudiated the war in Iraq.

The president himself, Barack Obama, was well-read, well-spoken, and well-educated. He had spoken approvingly of greater cooperation with the press, greater support for open government, and greater tolerance for whistleblowers within government.

Hence, what I found was surprising. Among the practitioners I interviewed there was widespread, almost unanimous, agreement that the climate for tough, investigative reporting had worsened dramatically under the Obama administration.

Part of that had to do with the industrial transformation the US media were, and are, undergoing. That transformation has weakened many news organizations—especially the once-pivotal regional press. They are left with neither the financial muscle nor the editorial will to conduct lengthy in-depth projects and to pay the lawyers who may be needed to protect from reprisals the reporters who carry out those projects.

Nor is there confidence among the media that the emerging news-consuming public has the appetite its elders once had for such journalism.

The subject I want to talk to you about today is a less-apparent dimension of this more difficult environment for investigative reporting (which is merely the more glamorous term for what we really recognize as accountability journalism.)

This dimension concerns the vulnerability of sources.

Sources are more vulnerable than ever before, thanks in part to the same technological marvels that we associate with the digital revolution.

The media have been slow to recognize the potential exposure of their own sources as a problem, not just for their news operations, but for the larger purposes that journalism is supposed to serve.

And the existing body of media law and ethics offers little support to the sources upon which journalists rely.

The observations I’m going to share mainly apply to the USA, but the technologies at the center of this analysis are fully globalized, and the determination of those in power to control the flow of official information is universal. So my belief is that much of this is of wider application.

Now, in this country, at one point last year, six men had been charged with espionage—that is, the same crime that a spy who sold high-level military secrets to an adversary would be accused of—for leaking classified information to reporters.

Thomas Drake, a career official of the National Security Agency, faced 35 years in prison for telling a Baltimore Sun reporter about what The New York Times called “a potential billion-dollar computer boondoggle.” At stake was bureaucratic embarrassment, not national security. (The case against Drake collapsed last summer. And he pleaded guilty to a minor charge.)

Shamai Leibowitz was an Israeli-American translator for the FBI, who believed he had intercepted evidence of illegal influence-peddling by the Israeli embassy. When his boss wouldn’t act, he leaked transcripts of wire intercepts to a blogger. He expressed contrition and was sentenced to 20 months.

Ex-CIA agent John Kiriakou was tried for allegedly identifying a Guantanamo interrogator (who was not working undercover.) The information went to lawyers defending a man imprisoned on the military base. He went to prison in January.

Stephen Kim, a State Department analyst, allegedly told a reporter for Fox News that the U.S. was worried North Korea might respond to new UN sanctions by testing another A-bomb. That case has recently gotten media attention; as is typical, the focus has been on the potential danger to the Fox News reporter. His source’s fate is of little concern.

Jeffrey Sterling allegedly disclosed a botched CIA operation in Iran that was described in a 2006 book by a Times reporter.

Then there’s the biggest case, the court martial of Bradley Manning, the Army private accused of engineering the mammoth dumps of U.S. military and diplomatic data that Wikileaks, the online whistleblower network, turned over to leading newspapers in 2010 and 2011. The government has treated Manning special particular ferocity, and he was held in solitary confinement for nearly a year. Although he pleaded guilty to charges that could’ve brought him 20 years in prison, prosecutors are pressing ahead to trial, which could result in life imprisonment.

Let me add that this war against unauthorized leaks isn’t limited to the national security realm. Private sector sourcing has been criminalized too.

Business reporters confront anti-disparagement clauses that forbid disgruntled former employees to discuss wrongdoing by the companies they worked for.

Mandatory arbitration clauses prohibit unhappy customers in many industries from speaking publicly about their grievances.

The response of the media to this crackdown on sources has been puzzling. By and large, the media don’t seem to care. In 2002, a sweeping financial industry reform measure known as Sarbanes Oxley was enacted, and one of its key features was enhanced protections for corporate whistleblowers. Through May 2011, a total of 1,211 complaints were brought by whistleblowers who alleged they had been punished for going public with accounts of wrongdoing. Federal regulators found merit in only 21. Media coverage of this has been scant. Financial reporter Mike Hudson identified 63 ex-employees at 20 banks who said they were fired or demoted for reporting fraud or refusing to commit fraud. Only four had been reported on in the news media.

Within popular culture, whistleblowing has suffered a reversal of fortune. Not long ago, the whistleblower was a hero. Jeffrey Wigand, who leaked damaging internal documents about tobacco industry lies to “CBS 60 Minutes” in the 1999 movie The Insider, was portrayed as a troubled man of principle. A decade later the whistleblower in The Informant was a fraud, an object of ridicule.

Media coverage of the campaign against Wikileaks, the global anti-secrecy network that Manning has admitted leaking to, shows much the same ambivalence, if not hostility, toward whistleblowing. Both Manning and Julian Assange, Wikileaks founder, are pathologized in explicitly sexual terms—Manning as a pint-sized gay malcontent with unresolved authority issues, Assange as a predatory heterosexual, sought by law enforcement for bedroom misconduct in Sweden with a determination normally reserved for genocidal Third World warlords.

The unhappy conclusion seems to be that popular culture has abandoned whistleblowers as public benefactors.

But my topic is the responsibility the news media have to their confidential sources.

Here’s where conditions have changed in fundamentally important ways. Traditionally, sources were protected by the fact that the reporters they had confided in could refuse to identify them.

What we call reporter’s privilege has been the shield for the reporter’s sources. This privilege—the right of the journalist to refuse to identify his or her informant–derived from the quaint notion that a gentleman should keep his word, and courts should respect such promises.

Sometimes the privilege takes statutory form, i.e. in law—such as the Reporter Shield Law that the Obama administration recently indicated it wanted to dust off and try to get through Congress. Other times it is argued that legislation is superfluous, because the privilege is already implied by the press freedom clause of the First Amendment of the Constitution.

In either event, the point of the privilege is to keep the identity of sources secret.

And it’s premised on the notion that the reporter has the ability to keep the source secret.

And that, increasingly, is no longer true. What’s most striking about the half-dozen Espionage Act prosecutions is that none of these sources were identified by the journalists involved.

That’s because the reporters weren’t needed.

Lucy Dalglish, then head of the Reporters Committee for Protection of the Press, recalls being told by a national security official after a White House briefing: “We’re not going to subpoena reporters in the future. We don’t need to. We know who you’re talking to.”

They know from phone records and intercepts, from social media comments, from emails, cellphone tracking, from physical surveillance.

I’ll spare you the details on just how vulnerable we all are now in the digital age of surveillance, informational retrieval, and the like. Suffice it to say that virtually no electronic media affords security to users. (And I suspect that includes conventional phone records.)

On an operational level, the more sophisticated reporters now confine their source contacts to in-person meeting. They say nothing via e-mail, and if they use cell phones resort to what drug dealers call burn phones, and replace them frequently. And they install encryption technologies.

But those of us who care about media rights and wrongs have a bigger problem, and since you are the consciences of your news oganizations, it’s your problem especially:

Protecting reporters from state coercion—via shield laws—is no longer enough. It won’t do the job of protecting the flow of sensitive, publicly significant information from vulnerable sources—which has traditionally been the ultimate argument, a powerful one, for press privilege.

We have to widen our consideration of what safeguards may be necessary to protect sources.

And we therefore need to consider whether the traditional notion—that source protection is a journalistic duty—confers obligation on the media, institutionally, to insist on juridical and perhaps legislative shielding not for their reporters, but for the sources on which the reporters rely.

We fuss endlessly over the rights of reporters, but my point is that the free speech rights that are of greatest concern aren’t those of the reporter, but of the source the reporter is quoting. We accomplish nothing for the society we serve if we keep reporters out of trouble while their sources are jailed.

I’m not familiar with the legal situation sources face in other countries. I was impressed, when I attended the Leveson inquiry last June in London, that British law apparently permits somebody accused of leaking secrets to plead that a wider public benefit was served. That provision doesn’t exist in US law, far as I know.

The larger public purpose for which anonymity is protected and the great journalistic mission of making sure that socially significant realities are brought to public attention—in defiance, if necessary, of the wishes of the powerful—are no longer safeguarded through a single-minded insistence on reporter privilege.

The expressive freedom that ultimately needs protecting isn’t the reporter’s, it’s the source’s.

It isn’t the source’s connection with the reporter that most needs protection: It’s the source’s connection to the public, for which the reporter is no more than a conduit. At issue is the source’s right to speak and the public’s right to hear.

News media like to stay out of the public policy arena, and prefer insisting that their proper role is one of observation and analysis.

But I see no other powerful entity in civil society that is inclined or able to take up the cause of extending to sources protection for speech that brings public benefit. It’s not a simply proposition to operationalize, and it’s not an easy cause to argue.

But the alternative, in my view, is an ever steeper slide into a concentration of state power and a technology-fueled authoritarianism.